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Scottish Court of Session Decisions >>
The Earl of Traquair v Janet Gibson. [1724] Mor 16809 (16 December 1724)
URL: http://www.bailii.org/scot/cases/ScotCS/1724/Mor3816809-016.html Cite as:
[1724] Mor 16809
The subscription of a cautioner in a tack by initials was sustained, having the attestation of a notary and witnesses.
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The defender had become cautioner in a tack granted by the Earl to Robert Cairns, which she signed only by the initial letters of her name. One notary had wrote her name at length as explanatory of her initials; and two witnesses were adhibited who were inserted in the tack as witnesses to her subscription. She being charged as cautioner, offered the following defences.
1mo, That the 80th act of Parliament in anno 1579, allowing notaries to subscribe for parties, does require two notaries and four witnesses; but in the present case there is only one notary and two witnesses.
2do, That the 21st act of Parliament 1672, concerning the privileges of the Lyon, does regulate the manner of the subscriptions of persons of all degrees, and requires that all persons, under nobility and dignified clergy, subscribe by writing their names at large, or at least the first letter of their christened name and their sirname at full length, whereas here there is only the first letter of the sirname.
3tio, The Lords, by their decision 18th June, 1707, Meek against Dunlop, No. 12. p. 16806, rejected an execution because it was signed only by the initials of one of the witnesses,
It was answered to the 1st, That, the act 1579 concerns only the case where parties do not subscribe at all, but where a party has subscribed by initials, the subscription of a notary is superfluous. To the 2d, That the act 1672 does not exclude subscriptions by initials, but only prohibits persons under the degree of nobility, &c. subscribe by the names of their land estate; and what is there said as to writing the sirname at large is demonstrative, but not exclusive or prohibitory of signing by initials. To the 3d, it was answered, That the decision concerning witnesses to an execution, where witnesses who can write their names, at large, may and ought to be adhibited, will not apply to the subscriptions of parties to obligations, where the creditor must take the subscription as the debtor can adhibit it.
The Lord Grange Ordinary sustained the subscription by initials, unless the defender would consign and improve: To which the Lords adhered, since it was not denied that the mark adhibited to the tack charged on was the suspender's mark.
Act. Ch. Areskine.Alt. Arch. Murray.Clerk, Justice.
Edgar, p. 131.*** Lord Karnes mentions a case under the same names, as follows:
1723. February.—A single writ of the same form with that quarrelled, was sustained as an evidence that the party was in use to subscribe by initials. (See Appendix.)
